Blame Canada: The Arguments For and Against Increasing Federal Judicial Salaries

Chief Justice Roberts has insisted in all three of his annual reports on the state of the federal courts that the "failure to raise judicial pay . . . threatens to undermine the strength and independence of the federal judiciary." He has added, "I have no choice but to highlight this issue because without fair judicial compensation we cannot preserve the quality and independence of our judiciary, which is the model for the world."

In other words, Roberts maintains, without a pay raise judges will continue to leave the bench for the more lucrative private sector, and America's best-compensated lawyers will decline an invitation to join the majesterium.

One of us--Gerber--strongly disagrees with the Grand Poobah (and with the Grand Poobah who preceded him, who also beat the drum on judicial salaries). See Flintstones, Fred. The other--Hawley--agrees with the Chief Justice, but not for the usual boilerplate reasons. See Mikado, The. Whatever Congress decides to do about the matter, both of us are comfortable invoking the immortal words of the Academy-Award-nominated theme song to the South Park movie: "Blame Canada."

Canada's Hockey Hullabaloo

While doing "exhaustive" research on the subject of judicial salaries (i.e., we nodded off in the library a few times), we discovered that American judges aren't alone in suggesting that they are underpaid. For example, in a 2003-04 controversy that temporarily distracted our neighbors to the north from the NHL games that dominate their television screens almost twelve months a year (yes, America, the NHL still exists), Canadian federal judges complained to the Judicial Compensation and Benefits Commission--an independent body that reports every four years on Canadian judicial salaries--that earning $216,000 (Canadian) and upwards a year wasn't enough. The Canadian judges insisted that unless their salaries were raised to $253,000 - $300,000 a year, judicial independence would suffer, because the best candidates would prefer private law practice, where they can make considerably more money.

Apparently, Chief Justice Roberts got his hands on the Canadian judges' play-book, because his arguments are the same as theirs.

An Ode to Karen Selick

Not to be outdone, Gerber managed to locate the play-book of one Karen Selick, a libertarian lawyer/writer from Ontario. More to the point, he read her brilliant Op Ed, "Why Judges Don't Deserve a Raise," in the May 2004 issue of the Canadian Lawyer. If only Chief Justice Roberts would read it. If he did, Gerber believes, the scales would fall from his eyes (to borrow from Jeremy Bentham this time, rather than Cartman).

Are we supposed to worry that judges will be tempted to accept bribes if they earn only a paltry $216,000 per year? Don't forget judges can spend every nickel of their incomes, because barring some egregious misconduct, they're guaranteed that amount every year until retirement, when their generous pensions kick in.

You go, girl! Gerber gushes.

Next, Ms. Selick makes Canadian mincemeat of the argument that a judicial pay raise is necessary to attract the best candidates to the bench. She writes:

The qualities that propel lawyers to the top of the heap in private practice may not be the qualities that make the best judges. Top litigators often have an outstanding sense of showmanship, strategy and media savvy, all of which are unnecessary in judges. Sometimes, top lawyers get to where they are because of political, social or familial connections, or because of extraordinarily aggressive personalities--all factors that might well make for worse, not better, judges.

Gerber again agrees with Selick. He also agrees with the findings in American law professor Scott Baker's recent study that, in light of the fact that in the last seven years only 15 out of 810 active U.S. federal judges have left the bench before qualifying for retirement, "the problem is not too much turnover, but too little."

The Ramblings of a Stuffy Old Fart

Hawley, by contrast, attempts to do more than simply rip off other people's arguments and attach adolescent pop culture references to them. He favors a pay raise for U.S. federal judges, albeit not for the reasons articulated by Chief Justice Roberts.

Hawley is unpersuaded by Chief Justice Roberts's contention that "failure to raise judiciary pay . . . threatens to undermine the strength and independence of the federal judiciary." Although regular salary increases are essential to Hawley's own "strength and independence," he is agnostic that that is so for others. When Hawley grudgingly explains the phenomenon of declining marginal utility of wealth to the students in his Law and Economics seminar, he makes sure to except his own utility. Hawley's utility would grow unabated with income into the several million dollar range, and perhaps farther. The economist Alfred Kahn famously took the same view in explaining the irrelevance of sunk investment in economic decision-making: "I was talking about other peoples' sunk investment, not my own," Kahn purportedly said. One must be self-centered in defending one's selfishness.

But Hawley supports a judicial pay raise anyway. Opposition to higher wages for discrete sets of individuals (federal judges being but one example) too often takes on a self-referential cast. A New York Times writer--who makes, say, $150,000 a year--carps about the high cost of medical care, allegedly due to physicians making, on average, $250,000. Corporate governance types--including securities class action plaintiff lawyers making millions of dollars per year--complain about CEOs who make tens of millions per year. And billionaire investor Warren Buffet thinks the rest of us should have our income taxes increased, while advocating no changes to the tax laws that leave the lion's share of his real income untaxed.

Increased judicial pay serves to insulate the judicial branch from the mob that has increasingly overtaken the rest of our body politic--from those who would claim that any civic-minded lawyer is qualified to serve as a federal judge. The federal judiciary is a Solomonic exception to private ordering, not a penny-ante people's court dispensing justice for the entertainment of the populist voyeur. Hawley supports a judicial pay raise not to attract conservative jurists who know the value of a dollar (though that is an attractive notion), or to entice lawyers to leave behind the high salaries of large corporate law firms (Hawley is, at best, indifferent to them). Hawley supports higher judicial pay out of reverence for the dignity of those who already serve.

By any measure, judicial salaries offend the majesterium of the federal courts. That a newly-minted, twenty-something associate at a big city corporate law firm earns a salary equal to, or even in excess of, a federal judge with decades of legal experience, is a travesty. In large cities where federal judges do their work, a salary of $165,000 is far below the earnings of even the lower levels of the upper middle class. In this circumstance, it is a testament to the inexhaustible well of gall possessed by the media and "public interest" groups, that federal judges can face criticism for attending law conferences (whether Federalist Society meetings or diversity sessions) in so-called "posh" locations like Aspen or Banf. Imagine: a vacation. Hawley shudders.

Like the Jack Nicholson character in A Few Good Men--who bowed crudely to feminism by expressing his desire to "promote them all"--Hawley has not yet seen the pay raise too large for the federal judiciary. He wants a judiciary that people look up to, not one that top practitioners can look down upon with a vague sense of pity and patronage. Let the Canadians throw scraps to their jurists at the children's table, if that is their tradition. The American tradition regards a federal judgeship as the pinnacle of one's legal career. At least that's what Hawley hears.

God knows what Gerber hears through the headphones of his iPod.

Conclusion: Everyone Sing!

In December of 2007, the U.S. House Judiciary Committee, by a vote of 28 to 5, endorsed a 31 percent pay increase for federal judges, designed to make up for the absence, since 1989, of cost-of-living adjustments. Chief Justice Roberts praised the Judiciary Committee's bill as a "reasonable compromise." The Senate Judiciary Committee was scheduled to vote on a similar bill on January 31st.

In Canada, by contrast, the Judicial Compensation and Benefits Commission proposed, in the plan ridiculed by Karen Selick, a 10.8 percent increase in the salaries of Canadian federal judges, but the government approved "only" a 7.25 percent raise. Unfortunately for the Canadian judges, they did not immediately see any of the money, because a Liberal Party bill granting the increase died on the order paper in the House of Commons when the government fell. However, the bill was reintroduced in the 2006-07 Parliament, and finally enacted into law. Canadian judges received a 7.5 percent raise.

The Canadian saga has not ended, though, as the Judicial Compensation and Benefits Commission has reconvened for its 2007-08 session.

If, as appears certain, the current session of the commission recommends another pay increase for Canadian judges, Gerber will blame Canada. Why? Because Chief Justice Roberts can simply repeat the arguments the Canadian commission makes to plead his case for American judges. If, as also appears certain, the Canadian government fails to approve the entire pay package recommended by the commission, Hawley likewise will blame Canada, because he fears that Congress may pick up on this cue and scale back on the House Judiciary Committee's meager 31 percent bump.

In short, it's Canada's fault. Everyone sing:

The smut we must stop

The trash we must bash

The Laughter and fun

Must all be undone

We must blame them and cause a fuss

Before somebody thinks of blaming uuuuuuuuuuuuuuuuuuuus!!!!

Scott Gerber is a professor of law and Kevin Hawley is a distinguished practitioner in residence at Ohio Northern University Pettit College of Law. Gerber's most recent book is the legal thriller, The Law Clerk (Ohio Northern University Press/Kent State University Press, 2007). Hawley didn't find it very thrilling.